(Washington, DC) – Judicial Watch announced today it filed a response in the Circuit Court of Cook County, Illinois, opposing a motion to dismiss the organization’s April lawsuit challenging Cook County Sheriff Thomas Dart’s refusal to honor U.S. Immigration and Customs Enforcement (ICE) immigration detainers or cooperate with ICE in identifying deportable criminal aliens.

The Judicial Watch lawsuit, Brian McCann v. Thomas J. Dart, was brought on behalf of lifelong Cook County resident Brian McCann, whose brother, Denny McCann, was run over and killed in June 2011, by an unlawfully present alien who had just completed a two-year term of probation for a 2009 DUI conviction. The alien, Saul Chavez, was charged with felony aggravated driving under the influence, but was released by Dart from a Cook County jail in November 2011 despite an ICE immigration detainer. In the lawsuit McCann asked the Circuit Court to compel Dart to comply with his legal duties to honor ICE detainers and to cooperate with federal immigration officials. It also asks the Circuit Court to declare the Cook County ordinance to be preempted by federal law. In its motion to dismiss, Sheriff Dart argued that an immigration detainer is simply a “request” from the federal government creating no legally binding obligation on the part of state or local authorities. Citing the Code of Federal Regulations, Judicial Watch responded, “There is nothing voluntary about the words ‘shall maintain custody’ as used in the regulation.” According to the regulation:

Upon a determination by the [U.S. Department of Homeland Security] to issue a detainer for an alien not otherwise detained by a criminal justice agency, such agency shall maintain custody [emphasis added] of the alien for a period not to exceed 48 hours, excluding Saturdays, Sundays, and holidays in order to permit assumption of custody by the Department.

Judicial Watch argued, “[The regulation] could not be any clearer … [The defendant] must maintain custody of the alien subject to the detainer for not more than 48 hours beyond the time that the alien would otherwise be released … [I]t does not authorize, much less require, any discretion or decision-making.” Sheriff Dart also cited to the 1997 Supreme Court decision in Printz v. United States claiming that the federal government cannot command him to administer or enforce a federal regulatory program’ including immigration law. Judicial Watch countered:

The error in Defendant’s argument is that he is not being compelled to administer or enforce a federal regulatory program … In this instance, the federal government is not requiring Defendant to locate the alien, arrest the alien, investigate and prosecute the alien, or even take custody of the alien. It is merely ordering Defendant to continue what he is already doing for at-most two more days so that federal immigration officials have the opportunity to take custody of the alien, after which the federal immigration authorities, not the Defendant, will determine whether to enforce – or not enforce – the immigration laws against the alien.

According to the Judicial Watch filing, in the only case in which a court has directly ruled on the detainer issue, (Galarza v. Szalczyk (E.D. Pa.)), a federal court decided that the immigration detainer is legally binding. The court held:

Pursuant to [DHS]Regulation 287.7 (d) … because ICE issued a detainer for the plaintiff, the Lehigh County Prison (a ‘criminal justice agency’) was required to maintain custody [emphasis added]of him after he was ‘not otherwise detained by a criminal justice agency’ for a period of not to exceed 48 hours .. in order to permit assumption of his custody by [DHS].”

“Cook County, in the typical Chicago political tradition, thinks it is above the law. And this administration refuses to take legal action against Obama’s hometown cronies to enforce the law,” said Judicial Watch President Tom Fitton. “This case demonstrates that our immigration enforcement efforts lie in shambles. Cook County’s sanctuary policy is against the law, wasteful, and deadly dangerous.” Judicial Watch’s Illinois lawyer is Christine Svenson of the Svenson Law Offices in Chicago, IL.